STATE OF GUJARAT Vs. PATEL KESHAVLAL HIRALAL
HIGH COURT OF GUJARAT
(The) State Of Gujarat And Others
Patel Keshavlal Hiralal And Others
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(1.) This is a group of four appeals arising out of the same judgment and order passed by the learned Judicial Magistrate First Class Kalol on April 18 19 whereby accused No. 1 was convicted for an offence punishable under sec. 477A of the Indian Penal Code and accused No. 2 was convicted for offences punishable under secs. 408 & 477-A of the Indian Penal Code.
(2.) Criminal Appeal No. 716/79 is filed by the State against the order of acquittal of accused No. 1 under sec. 408 of the Indian Penal Code. Criminal Appeal No. 717/79 is also filed by the State for the enhancement of sentence awarded to the two accused. Criminal Appeal No. 247/80 is filed by the original accused No. 1 and Criminal Appeal No. 248/80 is filed by the accused No. 2 against the conviction and sentence passed by the learned Judicial Magistrate First Class Kalol as stated above.
(3.) As this group of four appeals arises out of a common judgment and as a result of one trial the learned Additional Public Prosecutor and the Advocates of two appellants accused Mr. M. M. Desai and Mr. R. A. Mishra have urged that all these appeals may be heard together. At the outset Mr. Desai urged that in this case the charge Exhibit 7 (page 21) is defective and has caused prejudice to the accused at their trial. Mr. Desai has also urged that as a result of the faulty charge there has been miscarriage of justice. Hence he submits that the order of conviction and sentence passed by the trial court be quashed and set aside. Mr. Trivedi the learned Additional Public Prosecutor has urged that while there are some glaring defects in the charge they are not of such nature which would go to the root of the matter and vitiate the finding of the trial Court. To examine the two rival contentions of the learned Counsel it would be necessary to refer to the grounds on which the charge is sought to be proved materially defective. The first defect according to Mr. Desai is that the offences covered in the charge span over a period exceeding one year which is contrary to the proviso to sub-sec. (2) of sec. 212 of the Criminal Procedure Code of 1973. The learned Additional Public Prosecutor has urged that it is not correct to say that the charge covers the offences committed over a period exceeding one year. According to him the said offences have been committed between January 1974 and September 1974. The learned Public Prosecutor is right in his submission that the alleged offences do not cover a period exceeding one year; but he has to face another hurdle in this that the charge of the outset states that the accused were working as honorary Secretary and paid Secretary respectively during the period 1/03/1973 and 22/02/1974 whereas the alleged offences are said to have been committed after that period. Hence the offences alleged would not come under sec. 408 of the Indian Penal Code. Therefore the contention of Mr. Desai will have to be upheld that the charge as framed by the learned Magistrate is materially defective in this respect. The second defect which Mr. Desai has pointed out is that the charge refers to misappropriation of total amount of Rs. 21 79 P. whereas the specific allegations with regard to misappropriation on different dates do not total up to the said amount. This contention of Mr. Desai is right and has to be upheld. The third defect according to Mr. Desai is as regard the allegation of misappropriation of a sum of Rs. 15 0 covered by a document (Exhibit-51) which is the voucher passed by the accused No. 2 admitting his liability to reimburse the Society of the said amount which he acknowledged to have been due from him to the Society. According to Mr. Desai the allegation of misappropriation of the amount of Rs. 15 0 laid against accused No. 1 is not justified. If at all any liability as regards that amount arises it would be that of accused No. 2 only. This contention of Mr. Desai could not be upheld as it would depend upon only the evidence adduced in this ease ant the Court will have to give its findings on the basis of the evidence before it.;
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